Dead right

Every year Forbes magazine publishes its list of “Top-Earning Dead Celebrities.” As the editors explained in the 2006 edition, “A nail in the casket is hardly the end for some stars. Instead, their work, as well as their iconic images, continues to appeal to fans who remember them, and to those born long after they died.”

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Top earners noted that year included the musicians Kurt Cobain, Elvis Presley, John Lennon, Ray Charles, and Johnny Cash, as well as such writers and artists as Charles M. Schulz, J.R.R. Tolkien, and Theodor Geisel, better known as Dr. Seuss. The list also included Marilyn Monroe and Albert Einstein, both of whom have had highly lucrative posthumous careers not because of continued sales of their work but rather through the marketing of their name and image.

More recently, a new record has been set for posthumous moneymaking. In the seven weeks after Michael Jackson’s death on June 25, 2009, the star’s estate reportedly earned $100 million (from, among other things, a film deal, a commemorative coin, a line of school supplies, and a $150 coffee-table book); the estate was expected to earn another $100 million by the end of 2009.

In order for the public’s interest in dead celebrities to translate into dollars, the law must provide a mechanism that allows some, but not others, to profit. Shakespeare’s work continues to sell, and his image is iconic, but Shakespeare is not a top earner. People do not need to pay to reproduce his works or image because both belong to the public domain.

The two legal rights that make it possible for dead celebrities to continue to generate revenue are the right of publicity, which allows a person to control the exploitation of his or her image, and copyright law, which allows a person to control the exploitation of his or her creations. In recent years in this country, these rights have grown in significant ways, providing posthumous protections never before seen in history. They are part of a larger trend in which Americans have been granted ever greater rights to control their property interests after death.

At the same time, American law provides only scant protections for the interests we hold most dear: our bodies and our reputations. That’s because established law holds that we have no enforceable rights to control what happens to our bodies after death. As well, claims for defamation and invasion of privacy do not apply once a person is no longer counted among the living.

The right of publicity is the right of an individual to own, protect, and profit from the commercial value of his or her name, picture, and likeness and to prevent others from unfairly appropriating this value for commercial benefit.

This concept was born as a component of the right of privacy, which has its American origins in an 1890 Harvard Law Review article written by Boston law partners Samuel Warren and Louis Brandeis. In that article, Warren and the future Supreme Court justice Brandeis urged courts to recognize the development of a common law right to privacy, which in time the courts did. As the law developed, however, the right of publicity became a stand-alone right more powerful in scope and duration than traditional privacy protection.

In its conception, the right of publicity protected individuals’ privacy, preventing their identities from being used in advertisements without their permission. One of the first cases under this claim was brought in 1902 by Abigail Roberson, a young woman in Rochester, New York. Roberson’s portrait was copied from a studio photograph and used without her authorization by a flour company on its posters (with the punning slogan “Flour of the Family” under her image). The posters were distributed to 25,000 stores, warehouses, and saloons, and Roberson claimed she was “greatly humiliated by the scoffs and jeers” of people who recognized her face. Her suit proved unsuccessful—the court refused to recognize her interest in the absence of relevant legislation—but the public outcry from the decision in Roberson v. Rochester Folding Box Co. caused the New York legislature to enact a statute in 1905 explicitly prohibiting use of a person’s name, portrait, or picture for advertising purposes without consent.

In other states, it was the courts that developed a right of publicity, in the absence of legislation. Thus, shortly after the Roberson decision, a similar case arose in Georgia when an insurance company printed the photograph of a little-known artist, Paolo Pavesich, in an advertisement for its product. A supposed testimonial accompanied Pavesich’s picture: “In my healthy and productive period of life I bought insurance in the New England Mutual Life Insurance Co., of Boston, Mass., and to-day my family is protected and I am drawing an annual dividend on my paid-up policies.” Pavesich had never purchased life insurance from the company, nor had he agreed to the use of his image, which had been obtained from a local photographer. He filed suit complaining that the advertisement caused him great embarrassment among his friends. The court, in finding for Pavesich, recognized his interest as stemming from the right to control his privacy: “The right to withdraw from the public gaze at such times as a person may see fit, when his presence in public is not demanded by any rule of law, is also embraced within the right of personal liberty.” The Pavesich case marked the first time that a judicial decision explicitly respected the right of publicity.

Although these early cases and the legislation they spawned were sufficient to address the concerns of private individuals seeking to stay out of the public eye, they were ill suited to the needs of another group of individuals—those who wanted to control (and profit from) the marketing of their image. In 1953, the case of Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc. illustrated this limitation. The case arose from the fact that baseball players had granted Haelan Laboratories, a chewing gum company, the exclusive right to feature their pictures on baseball cards. Another chewing gum company, Topps, subsequently produced its own baseball cards with pictures of the same players. Although the state of New York had a statutory right of privacy at that time, it did not cover this situation. The right of privacy could not be asserted by Haelan since that right was seen as personal to the baseball players and not assignable. As for the players, they had already waived their reputational interest when they consented to appear on Haelan’s cards; their privacy could not have been harmed by the subsequent exposure, and therefore they could not sue on their own behalf.

To address this difficulty, and to bring the right of publicity more in line with market realities, the New York court moved away from viewing the right of publicity as a purely personal interest and reframed the interest as being more akin to property, and thus capable of assignment: “We think that in addition to and independent of that right of privacy . . . a man has a right in the publicity value of his photograph. . . . Whether it be labelled a ‘property’ right is immaterial; for here, as often elsewhere, the tag ‘property’ simply symbolizes the fact that courts enforce a claim which has pecuniary worth.”

This conceptual shift—from a personal interest to a property interest—may have seemed nominal at the time, but over the past 57 years, the effects have been dramatic. Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc. began a transformation of the legal landscape that paved the way for a new billion-dollar industry in the marketing of celebrity identities.

Several factors helped fuel the growth of this marketplace. First, it is relatively easy to assert rights with respect to property interests. To enforce a claim of invasion of privacy, an individual has to prove that he or she has suffered damages as a result of the invasion. When it comes to property interests, however, the law essentially presumes damages any time a person’s property is used without permission.

Moreover, once the right of publicity was designated as a property interest, it could be transferred to others (sold during life or passed on through a will). Eventually, perhaps inevitably, publicity interests began to be held and developed as corporate assets.

To get a sense of the extent of this phenomenon, one need look no further than Indianapolis-based CMG Worldwide (Indiana, not coincidentally, offers some of the most extensive protections for the right of publicity in the nation). CMG owns the publicity rights to hundreds of individuals, including, in the words of its chief executive, “the greatest legends in history.” Among these are the actors James Dean, Ingrid Bergman, Bette Davis, and Marlon Brando, musicians such as Duke Ellington, Chuck Berry, Ella Fitzgerald, Billie Holiday, and Don McLean, and sports greats Babe Ruth, Jackie Robinson, Joe Louis, Lou Gehrig, and Jesse Owens. Other CMG “clients” include Malcolm X, Rosa Parks, Amelia Earhart, Lee Strasberg, Mark Twain, and Frank Lloyd Wright.

Since the days of the first baseball cards, the right of publicity has expanded in scope to protect far more than a person’s image. As legal scholar Rosemary J. Coombe has described the transition:

The right of publicity . . . now extends to a person’s nickname, signature, physical pose, characterizations, singing style, vocal characteristics, body parts, frequently used phrases, car, performance style, mannerisms, and gestures, provided that these are distinctive and publicly identified with the person claiming the right.

Today, virtually anything suggestive of a famous person is likely protected by the right of publicity. For example, the late-night talk show host Johnny Carson successfully sued to stop a portable toilet company from using the phrase “Here’s Johnny,” and the Wheel of Fortune television model Vanna White succeeded in shutting down a commercial for Samsung in which a robot in an evening dress and blonde wig turned letters on a mock game show. The singer Bette Midler brought an end to a Ford Motor Company advertisement featuring a chanteuse who encroached on her singing style, and Jacqueline Kennedy Onassis was able to enjoin a Christian Dior advertisement that used a look-alike model.

When the right of publicity was a personal, reputational right, it ended at an individual’s death. However, when it became an economic interest—and could be sold—pressure grew from families, corporations, individuals, and their lawyers to endow it with another attribute of property—transferability at death.

Today most states provide, by either statute or common law, that the right of publicity survives the deceased. The durations favored by these states range from 10 years to a century. The most common provision, however, is 50 years. Tennessee (former home of Elvis Presley) provides for a potentially endless duration because it allows the right of publicity to continue so long as there is commercial exploitation of it.

American law has evolved a curiously split personality with regard to reputation after death—and this is true whether legislators or judges have taken the lead. Where reputational interests blend with or have been converted into property interests, the law has moved toward granting greater rights to the deceased (through their assignees), regardless of the costs and constraints this may impose on the living. But in the areas of law most directly concerned with reputation—defamation and privacy—we strictly adhere to the position that a person has no interests after death.

Consider a Louisiana case several years ago involving the murder of a husband and wife by one of their six children. As if the event were not lurid enough, a television station reporting on it added the following tidbit: “In an odd twist to this story, sources close to the investigation say that David Johnson, Sr., and his wife Ruby were also twins, brother and sister.” This remarkable detail was false, and the other children of the murder victims brought a defamation suit against the station on behalf of their deceased parents. However, the court ruled that no claim could be made because the parents’ reputations no longer existed. “Once a person is dead,” the decision reads, “there is no extant reputation to injure or for the law to protect.”

It is commonly argued that the law of defamation (the umbrella term for the legal claims of libel and slander) need not extend beyond life because a dead person is beyond harm or benefit. But what about family members and other loved ones? Surely they suffer when falsehoods are published. Nonetheless, the law is clear that family members cannot sue for defamation of loved ones (whether alive or dead).

State legislatures periodically have taken up proposals that would allow defamation claims to survive the deceased, but these attempts have largely been unsuccessful. In 1986, for example, the New York legislature considered adopting a statute whereby family members could bring a defamation claim within five years of a person’s death. The bill was considered in a variety of forms over multiple years, but it never passed. To date, the only state to enact any protections against defamation of the dead is Rhode Island. However, the Rhode Island protections are extremely limited—applying only to remarks made in an obituary within three months of a person’s death.

A dead person’s living intentions with respect to property are protected through the legal system of probate, which appoints a representative of the deceased’s wishes for the limited time necessary to distribute the estate. There is no similar system for tending to a person’s reputation. As legal scholar J. Thomas McCarthy observes, it is a settled principle of American law that “pop history writers and gossip magazines [can] roar away about the dead. . . . If offspring and relatives are upset, their remedy is to respond with the truth.”

In recent years one notable exception has emerged. It involves government releases of information to the public under the federal Freedom of Information Act (FOIA) and similar statutes at the state level. FOIA contains a privacy exception that allows the government to refrain from disclosing items that might violate a person’s right to privacy. This exception enables the government to withhold individual tax returns, as well as other material considered to be personal, from release to the public at large. Generally speaking, the privacy exception in FOIA does not protect the interests of people who are no longer living. In 2004, however, the Supreme Court considered application of the exception to death-scene photographs of the body of Vince Foster, President Clinton’s deputy counsel, after Foster purportedly committed suicide. The Court ruled that although Foster himself no longer had a right of privacy (because he was dead), his family was entitled to use the privacy protections of FOIA to keep the images from being divulged. In issuing this ruling, the Court made clear that it was protecting not the dead per se but the interests of the living.

A similar analysis was used to avoid disclosing tapes of 911 emergency calls made by dying victims of the 2003 Station nightclub fire in West Warwick, Rhode Island, as well as the dying words of callers to 911 emergency operators on September 11, 2001, from the World Trade Center towers.

Although these cases may seem to extend privacy protections to family members, it is important to note that they only limit access to information held by a government. Courts continue to refuse to recognize general privacy claims brought by relatives of the dead against other, private entities.

Whenever the law provides the means for enforcing an individual’s wishes beyond the moment of death—whether with respect to body parts, property, or reputation—it gives to the deceased a degree of immortality, as well as some measure of power over the living. And so the question should be asked: Does it make sense that the law permits publication of the most intimate facts of a dead person’s life—publication of lies, even—yet printing the same person’s image on a T-shirt or greeting card can be controlled for decades?

Like the right of publicity, copyright has grown in scope and duration. In the earliest days of the republic, copyright applied only to books, maps, and charts and lasted for just 14 years. Today copyright applies to all creative expressions and gives control over the original as well as all derivative works until 70 years after the death of the creator. Although this expansion has served to increase the economic value of copyrights, it has not been without costs. The extension of copyright has limited public access to creative output and curtailed the creation of other works.

Many Americans were surprised, for example, when the family of Martin Luther King, Jr., sued USA Today in 1993 for publishing the “I Have a Dream” speech without first paying for it. They were even more surprised when the paper compensated the estate $1,700 in settlement. The family has exerted a stranglehold on King’s image and words. Even the foundation that is building a memorial to Dr. King on the National Mall has been required to pay for the use of his words and image in its fundraising materials—some $800,000 as of April 2009. When publicity rights are owned by corporate entities with large legal departments, enforcement can be even more aggressive.

America grants more rights to the dead than any other country in the world. And over the course of our history, these rights have increased significantly. Why? In part, the reason has to do with the incremental, almost stealthy, nature of change in the laws: The overarching trend has gone unnoticed because the evolution has occurred in discreet areas of the law and often at the state level.

No doubt there are cultural reasons as well. As the British historian Arnold Toynbee wrote in 1968: “For Americans, death is un-American and an affront to every citizen’s inalienable right to life, liberty and the pursuit of happiness.” Given Americans’ anti-death stance, it is not surprising that American law has embraced rules that would deny death its ultimate power.